Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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The purpose of today's engagement is to meet the Ombudsman, Mr. Peter Tyndall, to discuss his recent report, entitled Opportunity Lost, an investigation by the Ombudsman into the administration of the Magdalen restorative justice scheme. We will then be joined by officials of the Department of Justice and Equality to discuss their response to the report. I welcome Mr. Tyndall and his colleagues, Ms Jacqueline McCrum, director general, and Mr. Tom Morgan, principal officer. I understand they are joined in the Gallery by Ms Emer Doyle and Madeleine Delaney. They are very welcome, along with everybody else.

Before beginning, members should be aware that under the Salient Rulings of the Chair, members should not comment on, criticise or make charges against a person outside the House or an official by name or in such a way as make him or her identifiable. I am obliged to read the privilege reminder for our guests. Witnesses are protected by absolute privilege in respect of their evidence to the committee. However, if they are directed by the committee to cease giving evidence on a particular matter and they continue to so do, they are entitled thereafter only to a qualified privilege in respect of their evidence. They are directed that only evidence connected with the subject matter of these proceedings is to be given and they are asked to respect the parliamentary practice to the effect that, where possible, they should not criticise or make charges against any person, persons or entity by name or in such a way as to make him, her or it identifiable. I invite Mr. Tyndall to make his opening statement.

Mr. Peter Tyndall:

I thank the committee for the opportunity to speak about the report. Members have had the opportunity to read the report and the opening statement and I do not propose to read that verbatim. I will highlight a couple of key points.

This investigation was of the administration of the restorative justice scheme. The comments we make are on that administration. I want to make clear that they are not intended as a criticism of particular individuals and particularly those responsible for the day to day administration of the scheme on the front line. That is not the purpose of the report. We looked at three particular points. The first was admission to the scheme and criteria for such admission. The investigation found there was too narrow an interpretation given to the eligibility criterion, which completely ignored the practical reality of the daily life of the women who were at that time working in the laundries that were part of the scheme and living in the convents in which those laundries were located. We are talking about women who went down the same stairs every day with women who accessed the scheme and in some instances slept in the next room to women who had access to the scheme. They worked in the laundries that are part of the scheme. We have been clear from the outset that we were not seeking to extend the institutions covered by the scheme but we were saying the criteria being used to determine whether the women concerned were admitted to and worked in those laundries were being interpreted too narrowly. That is the first point.

There is a second point related to that which I will pick up. It is to do with the Residential Institutions Redress Board. The Department has consistently argued the Residential Institutions Redress Board provided access to redress for some of the women we are talking about.

I wish to make several points about that. The first point is that it is possible to distinguish between the wrongs that were intended to be covered by the Residential Institutions Redress Board and those covered by this scheme. They were not intended to provide redress for the same things. The judge considering the issue in the High Court said that though it might be difficult to distinguish, it was still possible to do so.

A second point is important. That scheme is closed and some of these women had no access to it. The fact is that to avoid some people supposedly being compensated twice for the same wrong, some people are being denied any compensation. That cannot be right.

I am keen to raise some issues around how the length of time women spent in the laundries was calculated. We believe that too much reliance was placed on the records of the convents. There was insufficient interrogation of all the available evidence, for example, social security records, which would have enabled a different conclusion to be reached. The Department has accepted that recommendation and is working on it.

The third issue we examined was capacity. Some women are entitled to access the scheme and there is no dispute about their entitlement but they do not have the capacity to enter into the necessary agreements that form part of the process of giving redress. As a consequence, some of these women have not received redress. Committee members will have seen that the number of women in that circumstance has reduced over time. Regrettably, part of that reduction is because women have died before gaining access to the scheme. We highlighted this but no work had been done prior to beginning our investigation. We have now recommended, reluctantly, that the best way to address this is to ensure those women are made wards of court. It is not ideal – we are the first to accept that – but we can see no other way of ensuring that these women receive access to redress. For that to happen there needs to be a proactive programme from the Department. It is not sufficient to make telephone calls to the Office of Wards of Court. There needs to be active engagement with the women's carers. Where they are not in a position to move forward supports need to be put in place to ensure the ward of court process can be activated.

When it comes down to it, I am before the committee today in unusual circumstances. I have been an ombudsman for ten years, four of which I have spent in Ireland and six years elsewhere previously. During that time I have never reached the point where a Department has, prior to the publication of a report, absolutely and categorically refused to engage with the process around accepting and implementing the recommendations. I am very disappointed by that.

Since the report was issued, the Minister has essentially agreed to the implementation of three of the recommendations in the Dáil. However, as I have said, in respect of the wards of court process we believe implementation is still not proceeding vigorously enough. Nonetheless, I am pleased that the length of stay and all evidence will now be considered. Moreover, I am pleased that Government as a whole will consider a process for designing future redress schemes to avoid the problems we encountered when we looked at the administration of this scheme. The fact remains that, as of my appearance before the committee today, the Government has still not formally agreed to implement this recommendation.

I wish to make two points in that regard. First, we have been told that €25.7 million has been spent - the Minister said that. I believe the figure has now risen to €27 million. The upper estimate for the scheme at the point it was developed was €54 million. The nature of the wrong done to these women needs to be addressed regardless of the cost. Even at that, the issue arises.

My second point relates to the prohibition on dual funding inserted in the scheme. It was not inserted to the scheme that went before Government. It was put in as an administrative footnote. We believe that the scheme should not have had this prohibition as the two redress arrangements were for different wrongs. We now want to see those women receive the compensation belatedly that they should have received.

Women continue to contact the staff in my office. I will summarise the point they make to us. They say that they worked in those laundries, they washed the soiled sheets of the prisoners in Mountjoy Prison and the women who worked alongside them have received redress. They ask why they have been excluded.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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Thank you, Mr. Tyndall. I will open up the discussion to members of the committee for their contributions and questions. Deputy O'Callaghan is first.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I thank the Ombudsman for coming in and for the report he has produced. I am sorry to hear that he was dissatisfied with the level of engagement on the report from the Department. What would the Ombudsman expect from a Department when the Ombudsman produces a report that makes recommendations? The Ombudsman cited previous examples from other reports. What should happen? Based on Mr. Tyndall's previous experience, how should the engagement take place?

Mr. Peter Tyndall:

Often our office resolves issues without ever issuing a report. There is an injustice and it is accepted and put right. There is no need beyond that to issue a report. When it is a matter of great public interest or where there may have been an ongoing injustice, then we will go to formal investigation and issue a report.

I will outline two recent examples. One report related to child protection and other matters involving Tusla. A second report related to the way health complaints were dealt with. In both instances, I launched the report with the head of the relevant service, whether Tusla or the HSE, because we had reached a point where the organisation in question accepted that something needed to be done and the head wanted to commit publically to doing it. Through that form of collaboration not only do we identify what is wrong and what needs to be done but we are able to demonstrate commitment on behalf of the public body or Department to put right the wrong as well. That was not possible in this instance. Committee members will have seen the correspondence, some of which forms an appendix to the report.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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Does Mr. Tyndall believe the fact that the scheme is not established on a statutory basis has reduced the level of engagement one would expect from a Department?

Mr. Peter Tyndall:

I think a statutory scheme would be preferable, but in this instance the sense is that a particular interpretation was taken of a particular criterion and the Department would not step away from that. That could have happened in any event. A statutory scheme would be better.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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One of the main ongoing issues of concerns is the fact, as Mr. Tyndall said in his closing comments, that some women who were in these laundries or institutions have not yet received any benefit under this scheme. One explanation that appears to have been put forward by the Department is that there may be the prospect of double payment and people may have been compensated under the Residential Institutions Redress Board procedure. What does Mr. Tyndall say to the suggestion that it may be appropriate to exclude persons who had already been compensated under the Residential Institutions Redress Board and then permit anyone who was in a neighbouring institution to apply? Would that be unfair because, as Mr. Tyndall said, there were wrongs that can be differentiated?

Mr. Peter Tyndall:

I think the wrongs can be differentiated. I think the schemes were set out for different purposes and to redress different wrongs.

The fact that the judge in the High Court reached the same conclusion gives weight to that finding. It is not just our view.

The issue for me is twofold. One of them is that the Residential Institutions Redress Board, RIRB, scheme was not designed to compensate people for forced labour, and that is what we are talking about in the Magdalen laundries. Even if people had access to the scheme, they would not be getting redress in respect of that aspect. The second point I would make is that there are women who did not, in any event, receive redress under that scheme and who now have no prospect of receiving redress under it, and they will be permanently excluded from redress for a wrong that everyone accepts they should never have suffered. We are talking particularly about young women who were detained for whatever reason. Most of those young women today would be taken into care. Instead, they were forced to work alongside older women in these laundries, and we need to compensate them for that. I have a personal view, which is that it would be better to run the risk of double compensation than to see people excluded from access to redress that they should receive.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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Is Mr. Tyndall satisfied that enough efforts have been made by the Department to ensure that women who worked within the laundries are aware of the scheme and have applied for the scheme or is there anything else he believes the Department could do to apprise women of their entitlements under this scheme?

Mr. Peter Tyndall:

The Department did set out to publicise the scheme but the reality is that many of the highly effective non-governmental organisations, NGOs, voluntary organisations and others who have worked with the women have been more effective in getting the message across to people who were affected. It is a challenging task. I believe more could have been done but, thankfully, others were doing it so the message was got across to more people than would have been reached otherwise.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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It may not be within Mr. Tyndall's responsibility but one of the big issues for the women is the establishment of an appropriate memorial. Is anything being done or can anything be done by the Department to contact the women to try to allow them engage with each other as to how they believe there would be appropriate memorialisation?

Mr. Peter Tyndall:

We did not investigate that aspect of the scheme and it would be wrong for me to comment under those circumstances.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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Okay. I thank Mr. Tyndall.

Clare Daly (Dublin Fingal, Independent)
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I thank Mr. Tyndall for coming in today. It is fair to say we are in an unprecedented situation. To be honest, his report was scathing. It revealed a deeply flawed administrative process which resulted in women being wrongfully denied an entitlement they had and it is clear that has deeply affected Mr. Tyndall. I thank him for his compassion in that regard but how did we get here and what is being done to address it now? It struck me that Mr. Tyndall stated in the report that this scheme was supposed to be brought in to deal with the hurt and pain caused and it has led to more hurt and more pain. Basically, people were told they are liars when they outlined their experiences, and their testimony was held up against what was not even evidence by the religious institutions but the word of the religious institutions that a particular woman was not in the laundry for the time. In his report, Mr. Tyndall stated that that was not even questioned. The Department did not even ask for evidence to support what the congregations were saying and then dismissed the testimony of the women and disempowered them in the process.

Mr. Tyndall's report is powerful. I have never seen the like of it, and I thank him for that, but we need to address how we got here and if the issue will be addressed. We will make points to the Department, but in its response initially, the former Secretary General said that Mr. Tyndall had a fundamental misunderstanding of the scheme and that if more staff had been interviewed about the administration of the scheme, he might have understood it better. If more interviews had been held with the staff, would that have made a difference to Mr. Tyndall? Subsequent to his report, I tabled some questions and the Minister has assured us that the scheme was administered with compassion, dedication and so on. Is there anything Mr. Tyndall can add to that because we want to put questions to the Department? In his report Mr. Tyndall said the Department was consulted extensively so there is a discrepancy between what is being said and in terms of where we are at now. Mr. Tyndall might deal with that issue first.

Mr. Peter Tyndall:

We had good access to records and to the people administering the scheme. We had a series of meetings with senior officials. There were telephone calls with senior officials. The notion that if we had one or two more conversations we would have reached a separate conclusion is not realistic. There was a fundamental disagreement. We took the view that these women indisputably worked in the laundries that were part of this scheme and lived in the convents in which those laundries were located, and there is a complete refusal to accept that point of view reflected in the correspondence. That correspondence is the culmination of a lengthy engagement with the Department. It is not a one-off. We remain firmly of the view that the way the criterion was interpreted was the reason the women were excluded, and it need not have been interpreted in that way.

On the other issues, we were not seeking to make criticism of the individuals who were engaging with the women. That is not the nature of the report. It is about the administration of the scheme. There were sources of evidence available other than the ones that were used and they should have been accessed. That is the point. Agreement has now been reached to access those sources of information.

Clare Daly (Dublin Fingal, Independent)
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Does Mr. Tyndall have any idea why these problems arose or did he get any light shed on it? Even if we take the second payment, the residential institutions payments, Mr. Justice Quirke specifically said that should not be included. It was not included at the start but somebody decided to include it and, as Mr. Tyndall said, as a result, people who never got a payment out of that were then excluded from getting any payment. What was the rationale for doing that? What was the mentality around it?

Mr. Peter Tyndall:

The only explanation I have ever received in respect of the motivation was financial, namely, that an attempt was being made to restrict the scheme so that it was not open-ended.

Clare Daly (Dublin Fingal, Independent)
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The key aspect for now is whether Mr. Tyndall has had any indications subsequent to the publication of the report that there has been a change in attitude. We tabled parliamentary questions on it and, to be honest, the responses from the Minister are not hugely different from the responses Mr. Tyndall got midway through the process. We are still being told that we cannot get into the creation of a new scheme or extending the number of institutions, but Mr. Tyndall has stated clearly that that was never sought.

Mr. Peter Tyndall:

No. The most recent correspondence from the Department has been seeking clarification on what the disputed first recommendation entails, and we have been happy to provide that clarification. As these are generally people who were young women at the time, they are not likely to be entitled to the full level of compensation, so the cost to the Department would not be the equivalent of the average cost of the redress that has already been provided. It would be less than that, and the numbers of people involved are comparatively small by comparison with the overall members. From our perspective, therefore, there is no need for a new scheme. As far as we are concerned, with the proper interpretation of that criterion admitted to and worked in, these women are entitled to redress under this scheme. I should be absolutely clear, however, that if Government took the view that the wording of the scheme was precluding these women, and I do not accept for a moment that it is, it should introduce a new scheme.

Clare Daly (Dublin Fingal, Independent)
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I see that Mr. Tyndall's recommendations include the Department reconsidering the applications it has received. He gave the Department a timeframe of three months at the longest to do so. He said that it should immediately estimate the numbers involved and develop a timeframe. Two months of that timeframe of three months at most have now expired. Has Mr. Tyndall had any indication that proactive engagement, which he said was necessary in respect of the wards of court, is under way in this regard? Has he had any level of engagement at all subsequent to this?

Mr. Peter Tyndall:

As I have said, the principal engagement we have had has been a request for clarification and confirmation that the other two recommendations that fall within the Department's remit would be dealt with. The fourth recommendation was the one made to Government generally. Again, we have had positive responses on that. We have had a response on the first three recommendations. As yet, we are not happy with the quality of the engagement in respect of the wards of court. We want to see more done. All we have had in respect of the inclusion of women whom we believe were wrongfully excluded has been a request for clarification.

Clare Daly (Dublin Fingal, Independent)
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Obviously we will want to ask the Department many more questions. I do not know if the Ombudsman is in a hurry but is there a possibility of him being able to return given that the Department does not accept his recommendations? Is there a facility to call people back or have the people there at the same time? The problem is that, based on responses to parliamentary questions I have received and what the Ombudsman has said, the Department has not really accepted the recommendations of the Ombudsman. It has said that it will look at them but it has not indicated it will accept them.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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We will have an opportunity-----

Clare Daly (Dublin Fingal, Independent)
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Given that some evidence might be contradicted, can we recall witnesses or could they sit side by side?

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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The format is that we have the Department representatives coming before the committee on the conclusion of the Ombudsman's contribution. I hear what the Deputy is saying. I find it difficult to believe that the Ombudsman's report and evidence could be countered in the way that the Deputy has suggested, but if that is the case, the Department representatives are in the Visitors Gallery and Mr. Tyndall and his team are very welcome to stay for the second session. If it is the committee's wish, we could ask him to.

Clare Daly (Dublin Fingal, Independent)
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In hindsight I am sorry we did not reverse the order. We have many questions for the Department so perhaps we will wait and see.

Mr. Peter Tyndall:

I am happy to make myself available to the committee in any way that would be helpful.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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I thank Mr. Tyndall. Has Deputy Daly concluded?

Clare Daly (Dublin Fingal, Independent)
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Yes. I would like to bring the Department in now.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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The Deputy will have to wait until her colleagues have completed their questioning.

Jack Chambers (Dublin West, Fianna Fail)
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I thank Mr. Tyndall and his colleagues for the work they have done on this. He has referred to the shocking administration of this scheme and its narrow interpretation. There is a political contradiction here in that at one level the Department is accepting and thanking the Ombudsman and the Minister for Justice and Equality has said that he will give the report full and careful consideration, but on the flip side the Minister has said that he has been assured that the scheme is being operated with compassion and dedication by a team of officials in the Department. Does Mr. Tyndall feel that there has been full political acceptance of his recommendations? Does he feel the Minister wants his recommendations to be fully implemented or is there a contradiction or a reluctance on his part to back Mr. Tyndall's investigations and report fully? Does Mr. Tyndall want to elaborate on that point?

Mr. Peter Tyndall:

The Minister has essentially said that he will implement three of the recommendations and will look at the other one. That is the position as it stands. I hope the Minister looks favourably upon it, but at this stage and until he makes his position clear, I could not say what that position is.

Jack Chambers (Dublin West, Fianna Fail)
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In terms of Mr. Tyndall's engagement or feedback from the Minister, he has mentioned and referred to the compassion and dedication of his team of officials. Would Mr. Tyndall accept those remarks?

Mr. Peter Tyndall:

In my opening remarks I tried to separate the issue of the administration of the scheme from the individuals involved. It was not our intention to criticise them. That is not the purpose of the report. Generally, an Ombudsman's report looks at the affected issues rather than trying to highlight individuals. It is not about the conduct of particular individuals. It is about the administration of the scheme.

Jack Chambers (Dublin West, Fianna Fail)
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In the statement the officials have given to us, they refer to the cross-departmental aspects of this issue. Will Mr. Tyndall comment of the complexity of that? Does he agree with any of the remarks on the cross-departmental and budgetary complexities which they have referred to in their defence of some of his recommendations?

Mr. Peter Tyndall:

I do not have the advantage of having seen the Department's submission to the committee, but I can comment on the issue. The big advantage of this redress scheme was that it did not just provide a single payment in compensation but also provided access to health care and pension rights because people were unable to work and build up contributions. Those are very important aspects of the scheme. We would want to see them fully vindicated for all of the women concerned. I do not want to say that the issues are simple. They are not. There are complex issues around access to health care, some of which still need to be resolved. It was important, however, that they were resolved in respect of the women who were admitted to the scheme, so I cannot see that there would be obstacles to resolving them in respect of women subsequently admitted. The scheme is still open and women can still be admitted to it. If these women are admitted to the scheme, they should be able to access the same package to which women who have already accessed the scheme have entitlement.

Jack Chambers (Dublin West, Fianna Fail)
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In terms of the number of Magdalen survivors and issues with capacity, the Ombudsman mentioned those who have been permanently excluded. Some applicants have obviously passed away due to the administrative reluctance of the Department. It is a shocking development in the context of this redress scheme that they were frustrated by an administrative reluctance to given them redress in the context of the scheme. Are those who have since passed away those to whom Mr. Tyndall has referred as those who are permanently excluded?

Mr. Peter Tyndall:

The issue there is complex. Had the assisted decision-making service been brought in quickly, it would have provided an appropriate route to enable those women to access the scheme. When early on it became obvious that service was not going to be introduced quickly, an alternative mechanism should have been put in place. It took the instigation of my investigation for those alternative mechanisms to be explored. As I have said, even at the moment we do not believe that they are being explored vigorously enough. Women continue to die without access to the redress to which they are undeniably entitled. There is no ambiguity about that.

Jack Chambers (Dublin West, Fianna Fail)
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Following on from what Deputy Daly has said, it would be helpful if we could explore some of the issues which Mr. Tyndall and his colleagues have outlined-----

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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We can do so subsequent to the presentation by the Department officials.

Jack Chambers (Dublin West, Fianna Fail)
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Last week, during the scrutiny of some legislation, a committee had two separate parties with separate viewpoints before it. I know that other committees have a similar approach. Is that possible today?

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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I think it would be unfair because we have indicated to each of our sets of witnesses the formula which we intend to utilise here today. We will take the officials on their own. Mr. Tyndall and his staff are quite welcome to be in the Visitors Gallery and, if it is committee's wish, after the conclusion of the officials' contribution to the engagement, we can invite Mr. Tyndall to resume his seat.

That is the only way I can rule fairly in this instance. It is unfortunate that we did not anticipate it beforehand. Mr. Tyndall will appreciate that I must consider it in the round and that I am trying to be fair to everybody.

I thank Deputy Jack Chambers and call Deputy Ó Laoghaire.

Donnchadh Ó Laoghaire (Cork South Central, Sinn Fein)
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I thank Mr. Tyndall and the other delegates for coming before the committee. The women at the heart of this matter suffered grievously. Mr. Tyndall's report came into the public domain approximately 12 months ago in the context of a court case. In addition to the past wrongs inflicted on the women in question, the Department has behaved shamefully and it was entirely wrong for them to be dragged through the courts in the context of this process. I attended one of the hearings and it was wrong that the Department relied on a fairly Jesuitical distinction and that the women in question were forced to fight tooth and nail in order to have their situation recognised. It is wrong that it had to come to that.

As stated by Deputies Jack Chambers and Clare Daly, it would be useful to reflect on this issue after the meeting. Mr. Tyndall has outlined that the possibility of double recovery or two forms of redress arose on the basis of something of a footnote. He stated Mr. Justice Quirke had considered and discounted the issue of double recovery. Does he believe it is relevant in this context that those who went through the Magdalen redress scheme have signed waivers in regard to their right of action?

Mr. Peter Tyndall:

I do not believe so because the waivers they signed were in respect of a different wrong. They should still be able to access this scheme as it is intended to redress a separate wrong.

Donnchadh Ó Laoghaire (Cork South Central, Sinn Fein)
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That accords with the sense that other avenues are closed to them and, in that context, that they should have access to this scheme.

Mr. Tyndall dwelt on the issue of documentary evidence, in particular, the weight placed on the records of the congregations in assessing some claims and the fact that there was very little by way of interviews with applicants and so on. How much weight should be placed on testimony in processes such as this?

Mr. Peter Tyndall:

The testimony of the women in question was intended to be accessed and more credibility should have been given to what they said. As I stated, the records used often turned out to be contrary to the testimony of the women in question and other documentary evidence. In a situation where one is trying to right the wrong done to them, it is very important that their voices be heard in the process.

Donnchadh Ó Laoghaire (Cork South Central, Sinn Fein)
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Mr. Tyndall may not be able to answer my next question, which is quite general. Deputy Jim O'Callaghan asked a specific question on the issue of memorialisation. Can Mr. Tyndall comment on that issue, even in a general sense, or is it outside his scope?

Mr. Peter Tyndall:

It is difficult for me to do so. As Ombudsman, I try to comment on the basis of the evidence I have considered. As we have not considered that issue, any opinion I would give would be a personal one and I do not think that would be appropriate.

Donnchadh Ó Laoghaire (Cork South Central, Sinn Fein)
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My final questions relate to correspondence sent to the Minister, Deputy Charles Flanagan, and circulated to several Deputies by Justice for Magdalenes, the Irish Council for Civil Liberties and several other organisations. Mr. Tyndall's recommendations strongly emphasised the need to write to all women affected to inform them of developments in the case, the report and, in particular, the duration of stay and such issues. If the report is to be implemented, it is important that all those affected be informed expeditiously and comprehensively. Does Mr. Tyndall wish to comment in that regard?

Mr. Peter Tyndall:

That would be a very helpful step. The support organisations are aware of the report and have made it available to their members. It is also available on our website. We have been in contact with the women who complained to us. The Department has agreed to contact all those whose cases involve a dispute about length of stay and to reconsider them, but it would be helpful if it were to bring the report to the attention of all the women affected.

Donnchadh Ó Laoghaire (Cork South Central, Sinn Fein)
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That correspondence quotes the recommendations of Mr. Justice Quirke on pensions, namely, that Magdalen survivors be put in the position that they would have occupied if they had acquired sufficient stamps to qualify for the State contributory pension. On that basis, does Mr. Tyndall agree that the pension payments to which such survivors would be entitled should be backdated to retirement age rather than the beginning of the administration of the scheme?

Mr. Peter Tyndall:

As Ombudsman, the normal intention is to put a person in the situation in which he or she would have been had the injustice not occurred. On that basis, if the injustice had not occurred, the women in question would have been able to access their pensions from retirement, which is the contention of Mr. Justice Quirke, with which I am in agreement, and backdating does, therefore, seem appropriate.

Donnchadh Ó Laoghaire (Cork South Central, Sinn Fein)
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On such schemes generally, it is somewhat difficult to develop fully comprehensive lists of relevant institutions, particularly in respect of events that occurred a significant period of time ago. Would it be preferable, in considering people's eligibility criteria or qualification for a scheme, to base it on harm inflicted rather than a prescribed list of institutions?

Mr. Peter Tyndall:

I favour using both approaches such that people can come in through either door, which is the appropriate way to deal with this issue. If the list of institutions is in place, it gives certainty to those who were in the institutions. However, others who have had the same harm inflicted elsewhere should also be able to access the scheme. The two are not mutually exclusive.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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I thank Deputy Donnchadh Ó Laoghaire. I wish to recap a couple of points with Mr. Tyndall before we conclude our initial engagement. The committee may offer him a right of reply on further points we may elicit from representatives of the Department. His report was published last November. Its recommendations include timeframes for expected responses from the Department, including that the Office of the Ombudsman be provided within three months with a report on the outcome of the reconsideration by the Department. We are almost at that point. Has he received it or has he------

Mr. Peter Tyndall:

We have not received such a report.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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Mr. Tyndall has received no response on the first recommendation made in that case.

Mr. Peter Tyndall:

We received questions asking us to clarify the detail of the recommendation. We responded immediately with that information.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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Did it also apply to the six week period given for a review of cases involving a dispute about duration of stay?

Mr. Peter Tyndall:

The Department has indicated that that process is under way, but the Chairman would have to ask the Department where it has reached.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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From what I understand of my reading, through the obvious passage of time the number of women who lack capacity has decreased significantly to some 17 souls from of the order of 100 at one point. Is that the case?

Mr. Peter Tyndall:

Yes. In 2013 the number was 40. Sadly, it has been gradually decreasing. The Chairman must remember some of these women are in the care of the congregations-----

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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I understand that.

Mr. Peter Tyndall:

-----that originally managed the institutions in which they lived and worked. These congregations themselves have aged and decreased in number. They are not best placed to undertake this process. A variety of approaches could be used, such as the appointment of advocates for these women, but simply waiting for the process to take its course through contacting the Office of Wards of Court will not do. An approach must be taken whereby someone is placed alongside these women to assist with these applications and ensure they are submitted expeditiously.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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I noted that Mr. Tyndall indicated some reluctance in identifying the wards of court system within the Courts Service as the oversight mechanism for awards in these cases. Not only would I suggest it is a matter of helping to progress the entitlements, but I also think, subsequently, in terms of the committee's awards - and it is generally one person who has this oversight responsibility - it would be very important for the Ombudsman to continue to have some input as to suitability at that point. This has been the subject of some discussion by this committee in the past. We have not yet concluded a report in this regard but we have concerns and they will be reflected in our recommendations.

Some 27 women, I understand, contacted Mr. Tyndall initially indicating that they quite rightly believed they came under the criteria and were excluded. Is there a number beyond that that was part of the overall excluded number? Has Mr. Tyndall any idea about this? We have indicated the number of those with reduced capacity has decreased to 17. I expect they were a younger cohort in terms of the outset of their experiences. How many of them survive?

Ms Jacqueline McCrum:

We started with 26 and decided to look more closely at 13 of them. We agreed a conclusion, an early resolution, in respect of four of these with the Department of Justice and Equality through the mechanisms to which the Ombudsman referred and the interactions. We were then left with nine, and this is the heart of the dispute we have at present: four in An Grianán and one each in Cork, Limerick, Wexford, Waterford and Sean McDermott Street. That was the basis on which this interaction commenced. Through our officials who conducted the investigation one of the questions we have asked is to quantify the numbers. It is difficult because one must go out to find out who may not know about the scheme and who may want to apply to it. On a very rough estimate we have concluded that there are potentially around 32 such people. There may be more. I think the Ombudsman referred to the fact that they may not be entitled to the full amount of €100,000 because of other benefits they may have. We tried to put a figure on this. It could be anything between €3 million and €5 million. That is what we are looking at. Again, the Ombudsman has alluded to the fact that €54 million was set aside and €27 million has so far been paid out. If this approach were taken, between €3 million and €5 million is what we have estimated. As I said, we have not come to a definitive number.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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The money is already provided for.

Ms Jacqueline McCrum:

It was set aside.

Mr. Peter Tyndall:

I think the estimates were set when the scheme was being put in place. The Chairman would have to ask the Department whether money was identified in budgets. I suspect it may not have been, but the amount spent to date is half of the upper estimate when the scheme was first established.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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On behalf of the committee, I thank the Ombudsman, Mr. Tyndall, and Ms McCrum and Mr. Morgan for their attendance. Their evidence - their report, their written submission to us and their oral presentation today - has been very enlightening on a very sad, very dark episode in relatively contemporary Irish history. The saddest part of it is that the hurt and pain of these women is being compounded by our seeming inability to fully embrace the opportunity to make amends. I thank the witnesses and invite them to join us in the Visitors Gallery. We will continue addressing this issue now. We will suspend for one minute just to draw breath and allow Mr. Martin, the assistant secretary of the Department, and Ms O'Keeffe, the principal officer, to take their seats.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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On behalf of the committee, I welcome from the Department of Justice and Equality Mr. Jimmy Martin, assistant secretary, and Ms Tracy O'Keeffe, principal officer.

As they will know, I am obliged to draw their attention to the position regarding privilege. I ask them to note that they are protected by absolute privilege in respect of their evidence to the committee. However, if they are directed by the committee to cease giving evidence on a particular matter and they continue to do so, they are entitled thereafter only to a qualified privilege in respect of their evidence. They are directed that only evidence connected with the subject matter of these proceedings is to be given and they are asked to respect the parliamentary practice to the effect that, where possible, they should not criticise or make charges against any person or entity by name or in such a way as to make him, her or it identifiable.

I now invite Mr. Martin to make his opening statement.

Mr. Jimmy Martin:

I thank the Chairman especially for agreeing to facilitate my appearance today as I was away on business last week. Before addressing the recommendations of the report of the Ombudsman, I want to give some background. I will start with the residential institutions redress scheme run by the Department of Education and Skills as that has a bearing on the main issue raised by the Ombudsman. Following on from a State apology made in May 1999 for child abuse in various institutions, a statutory redress scheme was established pursuant to the Residential Institutions Redress Act 2002. A board was established to make awards to people who suffered abuse as children in any of the institutions scheduled to that Act. My understanding is there is no specific definition of "abuse" and that that was left to the redress board to decide. There was an acceptance by the State that it was legally as well as morally responsible for these wrongs, and the 2002 Act allowed a person to pursue a claim either through the courts or through the board. The cost of payments under this scheme alone was in the region of €1.25 billion. This does not include legal or administrative costs. As well as the redress board, a statutory commission was established to inquire into the historical abuse of children in certain institutions.

The commission published its report in 2009 and concluded that physical and sexual abuse was widespread in many of the institutions. Industrial schools were particularly prominent in the report. The Ryan commission report was the first comprehensive and authoritative account of the abuses suffered by children in these institutions. In the same year, the Department was approached by and met two groups, Justice for Magdalenes and Magdalene Survivors Together. Our understanding was that they wanted the State to acknowledge responsibility for abuses in Magdalen institutions, issue an apology and provide a redress scheme similar to that provided for residents of industrial schools under the 2002 Act. It was clear that they regarded Magdalen institutions as separate institutions from industrial schools.

In June 2011, Dr. Martin McAleese was asked to look at State involvement with the Magdalen institutions, in respect of which he was supported by an interdepartmental committee. His report, comprising over 1,000 pages, was published in February 2013 and it is a comprehensive account of the ten Magdalen institutions that operated within the State for a period of 70 years. Following on from this report, the Taoiseach apologised unreservedly to the women who had been admitted to Magdalen institutions. In his apology, the Taoiseach referred in detail to the findings of the McAleese report he and announced that a High Court judge, Mr. Justice John Quirke, had been asked to devise a scheme to address the needs of the Magdalen women. Mr. Justice Quirke produced his report in May 2013, which was published by Government in June 2013. While all his recommendations were accepted in principle by the Government there were administrative issues to be teased out and an interdepartmental committee was tasked with examining how they could be best implemented. On the basis of that committee’s report, the ex gratia scheme was finalised and adopted by Government on 5 November 2013. The scheme applied to 12 named institutions, ten of which were Magdalen institutions. These institutions were perceived by the religious as places of refuge or asylum for women. A proportion of the funding for their operation came from commercial laundries on site and the institutions became known to the public as Magdalen laundries. However, the laundries were not intrinsic to the institutions. Some had farms and in others the women engaged in lace work which was sold. The other two named institutions, Stanhope Street, Dublin and Summerhill, Wexford were not Magdalen institutions. Our understanding is that they were live-in training centres where young girls who had finished primary school were taught skills that would make them more employable in domestic service, hotels, etc.

I would like to make three points about the administration of the scheme. First, we were very conscious of the advanced age of many of the women concerned and, therefore, the Department went to great lengths to make as many payments as possible as quickly as possible. Even though the scheme was not finalised until November 2013 arrangements were put in place to start processing applications in June 2013. As a result, just three months after finalisation of the scheme, namely, February 2014, almost 200 applicants had received their lump sum payments and a further 120 had received a formal offer. As such, almost 40% of total applications had been processed in that period. Second, this was not just a Department of Justice and Equality scheme. A unit of that Department assessed applications and paid the initial lump sums but ongoing payments are made through the Department of Employment Affairs and Social Protection and health benefits are dealt with by the Health Service Executive. For many of the women concerned the pension payments are more valuable than the lump sum payments. I would like to take this opportunity to thank the staff of those agencies for all the work they have done in facilitating this scheme. Third, the Department was represented at meetings in April 2010 between former residents of institutions - industrial schools, in particular - and the Taoiseach. What was particularly striking and sad was the anger expressed by those residents towards those who were tasked with assisting them in obtaining redress under the 2002 redress Act. A lot of dissatisfaction was aired at that meeting. Influenced by this, we advised Mr. Justice Quirke that the scheme should operate with the least amount of work and stress imposed on applicants. Once an application is received, the staff of the unit within the Department take on the responsibility of carrying out all the research necessary to verify that the applicant had been in one of the 12 institutions and the timeframe in that regard. This is all that is required for a provisional offer to be made to an applicant as the scheme is based only on verified length of stay in a relevant institution.As a result of the active and sensitive approach by the staff of the unit, a good rapport has generally been established with applicants and the feedback has been very positive. As an example, I would like to read an extract from the latest expression of appreciation received from the daughter of an applicant, which is addressed to the Minister and dated 3 September 2017.

I feel X (a Justice staff member) went above and beyond, she was so nice and always said if my mam had any questions or was unsure of anything just to pick up the phone, and my mam been 87 can sometimes be nervous of new people but with X this wasn't the case. So I would just like to let you know how professional she is at her job and how kind she has been and it didn't go unnoticed.

This is typical of the response of most applicants.

In terms of the current state of play under the scheme, 830 applications have been received, approximately 200 of them from abroad, one has been withdrawn and one is still being processed. Decisions have been made in the case of the remaining 828 cases, 686 applicants have been paid a total of €25.7 million in lump sum payments and a further €258,000 in legal costs has been paid out. This does not include the ongoing costs of pension payments or medical card provision, which amounts to several million euro per year. Offers have been made but not yet paid in the case of a further 36 cases, including 17 cases where there is an issue of capacity. Some 106 applications have been refused as not having been admitted to and worked in one of the 12 institutions.

I will now comment on the recommendations made by the Ombudsman, the first of which relates to eligibility for admission to the scheme. The Ombudsman has taken the view that the Department of Justice and Equality has the authority to make payments under the scheme to persons who were in another institution on the same campus as one of the 12 named institutions. When this was first raised with us in the context of one institution, An Grianán, our response was that we would be as flexible as possible in applying the scheme but where a person had been admitted to an institution that was regarded in law as a separate institution and was covered by the residential institutions redress scheme we did not have the discretion or authority to include them in the Magdalen scheme. We said that we would have to go back to Government to get a decision on such a matter. The Ombudsman did not agree with that view and it was this issue that led to his investigation. His recommendation now is that the scheme applies to all other institutions on the same campus. In most cases, these would be industrial schools but they would include other types of institutions, such as orphanages, primary schools and so on as well.

My apologies in advance to the committee but my explanation as to why the Department does not have the authority to extend the scheme in the way suggested by the Ombudsman has to be legalistic and it does not relate to the merits or otherwise of extending the scheme, which is a policy matter for Government. As civil servants, we are required to account to the Comptroller and Auditor General for every payment made and, if necessary, to the Committee of Public Accounts. We have to be able to show the legal basis or other authority for payments made from public funds. The Magdalen scheme is an ex gratiascheme with no statutory base as approved by Government in 2013. It does not fall within the normal remit of the Department of Justice and Equality, which is significant in terms of our ability to pay. The sole authority for payments under the scheme therefore is the Government decision on the matter. The Department takes the view that the relevant Government decisions do not grant authority to make payments under the scheme to a person admitted to a legally separate institution even if it was on the same campus as one of the 12 named institutions. The reasons for the Department taking this view are as follows. The Government, when approving the scheme, accepted the September 2013 report of the interdepartmental group on implementation of the Quirke report, which specifically addressed the question of other institutions on the same campus and stated that it was proposed to exclude institutions such as industrial schools and primary schools to avoid double payments and this was accepted by the Government.

The initial assessments of numbers and costs of the scheme were calculated only on the basis of those in Magdalen institutions. At no stage did the Government, any Government Minister or any official express a view to us that a person admitted to an institution other than the 12 listed would receive payments under the Magdalen scheme. The scheme approved by Government is not focused on laundry work. Women admitted to Magdalen institutions who never worked in the laundry are covered by the scheme. The scheme was a response to the McAleese report which gives a vivid impression of those who lived in these institutions. It refers to how most found themselves quite alone in what was, by today's standards, a harsh and physically demanding environment. Some were poor and homeless, some were placed by their own families, some were young women over 16 who had been orphaned, some did not know why they were there and some did not know when they would get out and see their families again. The High Court, in a judgment delivered on this issue on 1 June 2017, stated, "It is not appropriate that any applicant under the ex gratia scheme should receive compensation, however described from the Redress Board Scheme and the ex gratia scheme covering the same wrong." The Department of Justice and Equality cannot unilaterally extend a scheme that has financial implications for other Departments.

I mentioned the question of double payments. There was one exception which proves the rule. The Department of Education and Skills, in the interdepartmental committee, drew our attention to the fact that a limited cohort of women were admitted to Magdalen institutions having been transferred from industrial schools. These were already entitled to payments under the residential institution redress scheme for the period up to the age of 18. That covered the period in the industrial school as well as the period in the Magdalen scheme. A concern was raised that this limited cohort could receive a double payment for the same period for the same institution. It was this limited exception that was considered by Mr. Justice Quirke and his decision was that the scheme should not seek to investigate or consider this matter further.

It is this first recommendation of the Ombudsman that causes us difficulty. It has administrative, financial and resource implications for ourselves and, more importantly, for other Departments. At a minimum, it would at least double the number of institutions in the scheme. We have started a process to estimate the additional numbers that would be involved. As part of that process, we are consulting other Departments which have an interest in the running of the scheme.

Moving to the second recommendation, for the reasons explained earlier, our application process was designed to make payments as quickly as possible and with the minimum stress for the applicant. To do this, we started the process before the scheme was finalised. We deliberately processed the most straightforward applications first. We looked for written records to support an application. Where written records confirmed an applicant's entitlement and the applicant agreed, we made an offer almost immediately. Where the records held by the religious bodies were not complete or were challenged by the applicant, all other sources were checked, including social insurance, school records, electoral registers etc. At all stages, there was much informal contact with applicants. Indeed, some of the women used to ring up regularly for a chat.

A formal interview was only required where there were no written records available to support an application. These were processed later since they were the most complicated applications, with interviews starting in October 2014, by when we had built up a level of expertise that allowed a fair and decisive interview. Only 73 cases required a formal interview and, of those, 69 were successful in their application, largely on the basis of their testimony and in the absence of supporting documentation. This point is noteworthy in illustrating that we sought to assist rather than obstruct women in getting their entitlements. Women regarded this formal interview as quite a harrowing experience. They had to be reassured. They were always allowed to bring a companion but they did not like the interview process.

The Ombudsman is correct that the approach of starting to process applications before the full details had been finalised by the Government has disadvantages. We believe these were outweighed by the advantages. The alternative, if we followed the system the Ombudsman advised, would have been to slow down the process of payments by six to 12 months. Although we started accepting applications before the scheme was finalised, the full terms of the scheme were only made available to an applicant when a formal offer was made. If a person was refused, an explanation of why a person was refused was given. I accept the Ombudsman's view that it was remiss of us not to have given all applicants, including those who were refused, the full terms of the scheme at the earliest possible stage. I would also point out that when an applicant was refused, the applicant was advised that it could be referred to the Ombudsman's office. As recommended by the Ombudsman, we are happy to review all those cases where there was a dispute over the length of stay using all available sources of evidence. To ensure that such reviews are seen to be objective and independent, we intend to set up a panel of people from outside to carry out these reviews.

I will address the matter of capacity. The Ombudsman, in his report, explains the background to the capacity issue and why it was not considered possible to use the Nursing Homes Support Scheme Act 2009, as recommended by Mr. Justice Quirke. Following discussions with our colleagues in the Department of Health, we thought that the second best option would be to include a provision in an Act specific to the Magdalen scheme and we had a Bill ready shortly afterwards which became the Redress for Women Resident in Certain Institutions Act 2015. However, by the time that Bill was ready for publication, the Assisted Decision-Making (Capacity) Act was at an advanced stage and was enacted the same year. It is clear that the decision support service to be established under the Assisted Decision-Making (Capacity) Act 2015 would be the most effective option in these cases. New administrative processes and support measures, including the setting up of the decision support service within the Mental Health Commission, a body under the Department of Health, must be put in place before the substantive provisions of the Act can be commenced. A high-level steering group is overseeing the establishment of the decision support service. A director of the service was appointed in October 2017 and €3 million has been provided in the 2018 Estimates for the Department of Justice and Equality for the service's establishment.

Pending the establishment of the decision support service, officials have been encouraging the use of other options to allow payments to be made, and we continue to examine what other options may be available. There are currently 17 such cases and three are in the process of making applications to be wards of court. We are in touch with the Courts Service about facilitating such applications. However, being made a ward of court may be viewed as inappropriate in cases and it cannot be regarded as the automatic solution. While the Department regrets the delay in paying these women, it is also conscious that it has a duty of care to protect such vulnerable women from potential financial exploitation. The wards of court system is regarded as being incompatible with the UN Convention on the Rights of Persons with Disabilities. Unfortunately, it is a very black-and-white situation. It is appropriate for a person who has absolutely no capacity but a person who has some capacity but not complete capacity loses all decision-making powers if he or she is made a ward of court.

The Ombudsman has made the point that the last recommendation in the report is addressed not only to the Department of Justice and Equality, and we have written to the relevant Departments to draw their attention to it.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I thank Mr. Martin for coming in and for his presentation. A concern that I and other members of this committee have is that, in February 2013, the State made a sincere apology to the women who were in Magdalen laundries, but there is a view in this committee, which I would hold, that the scheme applied and how it has been applied is not really consistent with the sincerity of that apology.

I have a concern the scheme is being applied far too strictly and harshly. It is not taking into account the vagaries of life that operated for the women who were in these Magdalen institutions so many years ago. In respect of the recommendations made by the Ombudsman, the first was in respect of broadening the eligibility for admission. I think the Department has adopted a very strict interpretation, stating that if the women do not come within the 12 named institutions, they cannot apply. Is that correct?

Mr. Jimmy Martin:

Yes, it is.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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The Ombudsman says that seems harsh. A number of women were located in places such as training centres or industrial schools attached to or beside a recognised institution. On whose instruction was the Ombudsman's analysis rejected? Did the Minister say he was wrong and that we should stick to the stricter version?

Mr. Jimmy Martin:

No. All the correspondence was between officials and the Ombudsman. It was not addressed to the Minister. I have explained the reasons. The scheme was decided by the Government. Our only authority is to carry out the scheme as decided by the Government.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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Has anyone in Government indicated to the Department that, in light of the strict manner by which it is being applied, the scheme should be amended or broadened?

Mr. Jimmy Martin:

In the light of the recommendation of the Ombudsman, and as obliged under Cabinet procedure, we are drawing up the implications of extending the scheme on the lines of the recommendation of the Ombudsman. That will then go to Government to decide.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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One of the Ombudsman's recommendations was that the Department should commence reviews. That is in respect of the first recommendation. The Ombudsman stated to the committee that he got a request back from the Department in respect of those reviews. Where are those reviews and when will they be completed?

Mr. Jimmy Martin:

The clarification was sought because in his report the Ombudsman referred only to industrial schools and training units. There were other institutions. We were not sure if he was limiting the reviews. That was the clarification we sought and the reason we sought it was to allow us to assess the numbers involved.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I understand that clarification has been provided.

Mr. Jimmy Martin:

Yes. There is no dispute between the Department and the Ombudsman as to the individual concerned. The person concerned was in one of the institutions on the same campus. There is no point in us doing a review until we have clarification as to whether the scope of the scheme should be extended.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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The Ombudsman recommended the Department should commence these reviews immediately. Do I take it from Mr. Martin's answer that the reviews, in fact, have not commenced?

Mr. Jimmy Martin:

That is correct.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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Has the Department told the Ombudsman that these reviews are not going to be done?

Mr. Jimmy Martin:

No, I am not saying we will not do the reviews. What I am saying is we cannot do the reviews until we have clarification as to the scope of the scheme. We still have this difference in perspective. The Ombudsman's view is that civil servants can decide to include these things. We are saying that civil servants cannot do that, so doing a review is not going to change things. What we have to do is review the number of people involved and the implications and then seek a Government decision on the matter.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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Has anyone in the Department gone to the Minister and said we cannot commence this review in respect of what the Ombudsman has suggested until such time as a Government decision is made to extend this scheme beyond the 12 named institutions?

Mr. Jimmy Martin:

It is a Government scheme, so at various stages we have kept the Government advised that the Ombudsman was conducting an investigation into the scheme and why. We also advised the Government that it was about to be published. We have told the Minister what we are doing. He is of the view that we need to consider this in a very open manner, and that is what we are doing.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I am conscious of the function and role of the Civil Service. Ultimately, this is a decision for the Minister and Government. Is that what Mr. Martin is saying to us?

Mr. Jimmy Martin:

Ultimately, it is a decision for the Government.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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Okay. In respect of advocacy services, many of these women are elderly and vulnerable. They need access to some form of expertise or advocacy to enable them to engage with this scheme. What has the Department done to provide them with access to independent advocacy services through the scheme?

Mr. Jimmy Martin:

If the Deputy is saying independent of the Department, nothing has been done. What was arranged at the outset was that the citizens advice bureau would be available to people who want to make applications and required assistance. In practice, what has happened is that most of the women get in touch with somebody in the office and, because of the good report, they are normally assisted. In some cases staff have filled out the application forms. The staff have helped them do that.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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Is there any formalised method whereby women who have not engaged with the Department are informed, notified or provided with any advocacy services, whether independent or not?

Mr. Jimmy Martin:

No, there is not.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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In terms of the memorialisation, one of the recommendations is that a memorial should be put up to commemorate and recollect what happened. This requires engagement by the women themselves. Has the Department done anything or can the Department do anything to enable the women to come together and collaborate on what they would like to see?

Mr. Jimmy Martin:

Yes. We have been in touch with Dublin City Council. It is the owner of the Sean McDermott Street site. We raised the issue about a year ago. However, the plans for the site had not been decided. The council has decided there will be a memorial garden there now and it has asked for our assistance in contacting the women to engage with them as to what the memorial should be.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I thank the witness.

Jack Chambers (Dublin West, Fianna Fail)
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I thank the officials for coming before us. My first question relates to something I asked Mr. Tyndall. There were 19 Magdalen survivors with disabilities who could not be paid compensation. There was an issue of capacity on one of the recommendations and an issue with the assisted decision-making legislation that was enacted. Today, the Department has said there are 17 women in this situation. What has happened to the other two women?

Mr. Jimmy Martin:

I do not know the full details of those particular cases. What has happened over the period is that various people have applied to be made wards of court and have been successful in their application. The money has been paid to them. In one or two cases the women have died and the lump sum payments will be paid to their estate.

Jack Chambers (Dublin West, Fianna Fail)
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Sorry?

Mr. Jimmy Martin:

The lump sum payment is paid to the estate of the deceased.

Jack Chambers (Dublin West, Fianna Fail)
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So the delay has resulted in their permanent exclusion as per what the Ombudsman said. Is that correct?

Mr. Jimmy Martin:

If they are dead, yes, but if they are alive, no. There is no question of permanent exclusion.

Jack Chambers (Dublin West, Fianna Fail)
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The other thing I wanted to ask about was the third recommendation and the delay that has occurred. Was it the Department's intention just to wait infinitely for this legislation to be enacted? What was the proactive background work from the Department when it became aware there were numbers of women who did not have the capacity? Obviously, when capacity is constrained, that has an impact on the possibility of living through that period. What triggered the move to looking at the wards of court scenario in terms of the timeline?

Mr. Jimmy Martin:

The timeline was-----

Jack Chambers (Dublin West, Fianna Fail)
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When was the first ward of court payment made?

Mr. Jimmy Martin:

I am not able to tell the Deputy off the top of my head. I can get the details if he wishes. Some of the applicants could have been wards of court when they applied. There was no restriction. The change was that the Act-----

Jack Chambers (Dublin West, Fianna Fail)
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No, I refer to those women the Department understood did not have the capacity and would have had to be made wards of court. Were any applications progressed fully under that?

Mr. Jimmy Martin:

Yes. I do not know the number but the answer is yes. In some cases people would have been made a ward of court two or three years ago. They would have been paid because there is a process for paying them. The timescale was that when the 2015 Act was enacted, we were hoping that would commence quite quickly. In those circumstances we were not encouraging anyone to be made a ward of court because it has a lot of downsides and the system envisaged by the 2015 Act is much superior.

When we were discussing with our colleagues on the other side of the house when it would be commenced, it became apparent to us that there was a significant delay in making an arrangement. At that stage we wrote to all the people who had capacity issues. We wrote to their carers suggesting that they might wish to be considered wards of court because it was going to be some time before the 2015 Act was commenced.

We are now reaching the stage where active arrangements are being put in place to commence the 2015 Act.

Jack Chambers (Dublin West, Fianna Fail)
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What has caused the delay?

Mr. Jimmy Martin:

My colleague, Ms O'Keeffe, knows more about the reasons for that.

Ms Tracy O'Keeffe:

The Assisted Decision-Making (Capacity) Act was enacted at the end of 2015. It provides for the setting up of the new decision support service within the Mental Health Commission, which is under the aegis of the Minister for Health. There is quite a lot of work involved in that. It involves co-operation between the Department of Justice and Equality, the Department of Health and the Mental Health Commission itself. A steering group was set up in early 2016 to oversee that process, and its work is ongoing. The process of recruiting the director is prescribed in the Act. It has to be done by the Public Appointments Service, PAS. That person was to be appointed by the Mental Health Commission. That process has concluded and the director took up the position at the beginning of October of 2017. She is now in place and is working very actively towards ensuring that everything is in place for the Act to be commenced. There is a tendering process ongoing at the moment for business process analyst and project management expertise so that we can scope out an implementation plan. There are various components that have to be in place and regulations that have to be made, some by the Minister for Justice and Equality, some by the Minister for Health and some by the director. Codes of practice are being developed. That process is under way with the National Disability Authority and the HSE. Quite a lot of work is going on in the background.

In terms of a commencement date, because so many of the provisions of the Act are interlinked, it is not really possible to introduce this on a phased basis. Many of the parts have to come into operation together. For example, the transition of people from wardship cannot happen until the new decision-making support arrangements are in place. They have to travel together as well. The co-decision-making agreements and the decision-making representative provisions travel together because they are very closely interlinked. There is an awful lot of work going on to get this Act ready for commencement, and we cannot give a specific date at this time.

Jack Chambers (Dublin West, Fianna Fail)
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Does the witness expect it to happen this year?

Ms Tracy O'Keeffe:

That would be very ambitious.

Jack Chambers (Dublin West, Fianna Fail)
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One side of the Department of Justice and Equality says that this would be extremely ambitious and another is saying that it is relying on the progression of a particular part for which the Department has overall responsibility. Who in the Department is driving this? Who is making this a priority? One side of the Department was hoping that the enactment would occur quickly in 2015 and another side is saying that this year is an ambitious target. What communication is happening? Cross-departmental communication was mentioned. What communication is happening within the Department? There is clearly a dysfunction there. One part of the Department is saying that it hopes to see speedy enactment of something it is responsible for, and another side of the Department is telling the committee that it is ambitious that we would see it this year. We are now looking at 2019 at the earliest. Perhaps there is an explanation for that. I would like to hear it.

Mr. Jimmy Martin:

It is a priority for all sides of the Department, and a priority for the Government in that it has agreed to ratify the UN Convention on the Rights of Persons with Disabilities. The 2015 Act has to be commenced if we are going to be compliant with that convention. It is a Government priority.

There is no dysfunctional relationship in the Department. Everyone in the Department wants to see this done as quickly as possible, but the people involved in doing this feel that they need to do a job. We have been seeking a specific date for commencement but they do not feel they can do that as yet.

Jack Chambers (Dublin West, Fianna Fail)
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The Government has announced that the UN convention will be ratified in March. Is the witness saying that it cannot be ratified if it is going to be delayed to 2019?

Mr. Jimmy Martin:

I am not saying that. Part of our compliance with the UN Convention on the Rights of Persons with Disabilities involves the implementation of the 2015 Act.

Jack Chambers (Dublin West, Fianna Fail)
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The witness is saying that the Act cannot be implemented this year.

Mr. Jimmy Martin:

My understanding is that the Government has decided to ratify it this year.

Jack Chambers (Dublin West, Fianna Fail)
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Will it be compliant with what it is ratifying this year?

Mr. Jimmy Martin:

I am not in a position to say that. That is in the future.

Jack Chambers (Dublin West, Fianna Fail)
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The witness is saying that it requires this to be-----

Mr. Jimmy Martin:

If Ireland is to be fully compliant-----

Jack Chambers (Dublin West, Fianna Fail)
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Ireland will ratify something with which it will not be compliant.

Mr. Jimmy Martin:

I do not know what is going to happen in March.

Jack Chambers (Dublin West, Fianna Fail)
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The Government announced this week that it would be ratified in March. Is the witness saying that it is going to ratify something that it is not compliant with?

Mr. Jimmy Martin:

I am not saying that. The Government is going to ratify it. It is trying to ensure that everything involved is commenced as quickly as possible. I am not in a position to say whether all of these things will be commenced. We would have to discuss that within the Department.

Jack Chambers (Dublin West, Fianna Fail)
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The witness also mentioned compliance with the UN convention as a reason for not using the wards of court process in his statement. He is using a future policy change as a reason for not progressing applications from a number of women who are entitled to payment under this scheme. He mentioned that the UN convention was a reason for not progressing the payment. He is now saying that we have not ratified that. How can he use a future ratification process as a reason to justify a retrospective denial of women who are entitled to payment under the scheme?

Mr. Jimmy Martin:

I do not agree with the Deputy's interpretation of what I said.

Jack Chambers (Dublin West, Fianna Fail)
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The witness mentioned the UN convention as a reason for denying the women-----

Mr. Jimmy Martin:

It is not a reason for denying applications for wardship. We have encouraged people to apply for wardship. I am saying that it may not be suitable in every case, and that there are some disadvantages to the wards of court system. It is not an automatic solution in every case.

Jack Chambers (Dublin West, Fianna Fail)
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Why did the witness mention the UN convention?

Mr. Jimmy Martin:

It shows that in an international context the UN does not believe wardship is suitable for every case. That is why it is being changed.

Jack Chambers (Dublin West, Fianna Fail)
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What relevance did it have to the justification for his statement? The witness mentioned the UN convention in his statement, under the capacity recommendation.

Mr. Jimmy Martin:

If we interfered with-----

Jack Chambers (Dublin West, Fianna Fail)
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What relevance does it have to his justification of what has been done in the past two years? If the State has not ratified the convention yet, why was it used to defend the recommendation of the Ombudsman?

Mr. Jimmy Martin:

I do not disagree with the recommendation of the Ombudsman.

Jack Chambers (Dublin West, Fianna Fail)
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The witness mentioned the convention.

Mr. Jimmy Martin:

The Deputy should let me answer the question. We want people to get money as quickly as possible. We do not want to put women in a situation where they are worse off as wards of court than they are now. That would be a form of abuse of vulnerable people. In some cases wardship is clearly the best option, and we would encourage people to apply for that because it is going to be quicker than waiting. In other cases it may not be as quick. It depends on the individual case. I am not saying that this is a black-and-white situation. We have to be careful that we do not commit a new abuse on these vulnerable people by forcing them to become wards of court if it is not appropriate. It is appropriate in some cases but not in all cases. The danger of inappropriate use is illustrated by the fact that the UN Convention on the Rights of Persons with Disabilities would not allow for that kind of black-and-white situation to arise. The UN wants a more sophisticated solution, which will come from the new Act.

Jack Chambers (Dublin West, Fianna Fail)
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We need clarity around what the Government has announced in the past week. It has said that it will ratify something that the Department is now telling me it will not be compliant with.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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It is not just the case in that legislation. The Health (Miscellaneous Provisions) Bill has not been presented for its next Stage yet. There is a raft of other legislation to be considered. When one has been in this House for a long time, one is able to cite Bills that were passed years ago that, while they are Acts today, contain sections that have not yet commenced. It is frustrating, I have to say, and the Deputy's presentation of his frustration in this regard is shared by all his colleagues. However, we are not going to be able to progress it further in this session.

Clare Daly (Dublin Fingal, Independent)
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I do not know what I feel at the moment. The contrast between the two presentations is utterly striking. The Ombudsman was at pains to say that when he was making criticisms of the administration of the scheme, it was not a personal slight on any of the front-line staff who were administering the scheme but a question of the deficiencies in the manner in which the administration of the scheme was set up. The points I am making are not personal but it is very clear there are deep-rooted systemic problems in the Department of Justice and Equality that have led to a lack of humanity and compassion. The whole presentation is clouded in a defence of what has happened rather than a genuine embracing of comments made to improve the lot of people for whom we set up a scheme because the State wronged them. That was the starting point. At the heart of this, there are women whom the State wronged and we are trying to establish a scheme that is best to deal with them. That was not the starting point. The whole presentation was a defence of what has gone on to date. Does Mr. Martin accept the Ombudsman's report was a year in the making and followed almost a year of what can only be described as a bitter dispute - it appeared in the media - between his office and the Department over the interpretation of the scheme? It was not done lightly and came after huge engagement behind the scenes? Does the Department accept that is the case?

Mr. Jimmy Martin:

Yes. There was lots of engagement between us and the Ombudsman.

Clare Daly (Dublin Fingal, Independent)
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Is Mr. Martin aware of any scenario where an Ombudsman's findings have not been accepted by a Government Department?

Mr. Jimmy Martin:

Yes.

Clare Daly (Dublin Fingal, Independent)
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Are there many such cases? Can Mr. Martin give an example?

Mr. Jimmy Martin:

I think there has only been one case.

Clare Daly (Dublin Fingal, Independent)
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What is that case?

Mr. Jimmy Martin:

It was not in a large Department. I think it was to do with fishing boats or something like that.

Clare Daly (Dublin Fingal, Independent)
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It is very rare that an Ombudsman's recommendation is not adhered to.

Mr. Jimmy Martin:

Yes, that is my understanding.

Clare Daly (Dublin Fingal, Independent)
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I know there is a contradiction between words and actions but based on the report the Department gave us and my reading of Mr. Martin's presentation, the Department of Justice and Equality does not accept the findings of the Ombudsman.

Mr. Jimmy Martin:

No, what we are saying is we cannot accept it, only the Government can decide that and we will bring it to the Government but first we have to do the research to present all the facts to the Government. We are open-minded. We are not rejecting it. As the Minister said, we will consider it and then it will be submitted to Government. Civil servants cannot make that decision.

Clare Daly (Dublin Fingal, Independent)
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The problem I have is that the Ombudsman did his report in November. I tabled questions to the Minister in response to that and got an answer telling me the Department will give full and careful consideration to all the recommendations contained therein. He said he is waiting for the Department. Mr. Martin is saying the Department is waiting for the Minister. There is a Chinese wall being put up between the Department and the Minister over this issue. Has the careful and full consideration the Minister assured me the Department will give being done?

Mr. Jimmy Martin:

It is under way. The first step was to establish exactly which institutions it would apply to. On our reckoning, there are 12 to 14 other institutions. The next step, as the Ombudsman says, is to assess the number of women that might be involved. These institutions did not fall within the scope of the Department of Justice and Equality. We are in touch with the Department of Education and Skills to see what records it has of the number of people involved in the different industrial schools, primary schools, training units and things like that. It will take a lot of research to do that.

Clare Daly (Dublin Fingal, Independent)
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Is it Mr. Martin's contention that it would require a new scheme?

Mr. Jimmy Martin:

No, it is a matter for Government to decide. In our view, it would be extending the scheme. The Ombudsman has said it should apply to people who were in other institutions who worked in the laundry. The existing scheme works on the basis that it does not matter if one worked in the laundry or not; it worked on the basis that one had been admitted to a Magdalen institution and it is assumed one worked. One did not have to have worked in the laundry, it could have been any kind of work. The Ombudsman's clarification suggests that if one went to an industrial school on the same site but did not work in the laundry, one would not be covered. We have to see whether it is administratively possible to distinguish between people who worked in the laundry and did not work in the laundry and whether there are any records to that effect. Then the Government will have to decide if it will apply to everybody or to limit it just to people who worked in the laundry.

Clare Daly (Dublin Fingal, Independent)
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That is not the case. The Ombudsman has presented very strong evidence that the Department of Justice and Equality was well aware of the links between the units attached to the Magdalen laundries and the idea of people working in one of the laundries but being admitted to or resident in an adjacent building. The Ombudsman has presented very clearly how that does not refer to new institutions. It put the view that the phrase that established the scheme, "admitted to and worked in", was never defined in legislation or by the Minister and that somebody in the Department of Justice and Equality chose to interpreted the phrases "admitted to and worked in" in this narrow way. Conall Ó Fátharta from the Irish Examinerhas done some Trojan work on this. An example is that it has been established that An Grianán and High Park were the exact same institution for all intents and purposes. The HSE even provided records to the McAleese inquiry to verify those points. Who decided that "admitted to and worked in" would be interpreted in the way the Department is interpreting it and saying that otherwise the scheme would have to have been changed?

Mr. Jimmy Martin:

It was the language and the conjunction used. It says "admitted to and worked in", not "admitted to or worked in". In the normal interpretation of the English language, if one says "admitted to and worked in", it means one was both admitted to the institution and worked in it.

Clare Daly (Dublin Fingal, Independent)
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Does Mr. Martin accept it was never defined anywhere and was equally open to a different interpretation?

Mr. Jimmy Martin:

It was never defined anywhere. I will take the example of An Grianán to illustrate the complications. The Deputy is quite right. When An Grianán was established, it was an integral part of the Magdalen institution. By the time it was finished it was in a separate building, not on site, and there was no connection with the laundry. We could not just say it applies to An Grianán because the later An Grianán was not even on the same site and would not-----

Clare Daly (Dublin Fingal, Independent)
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Does Mr. Martin accept it includes the earlier An Grianán?

Mr. Jimmy Martin:

Yes, at the very start when there was no distinction. For the existing scheme, the critical thing is not whether one worked in the laundry or not. To demonstrate the difficulty of that being a phenomenon of the existing scheme, if one looks at examples of industrial schools and primary schools, we do not know whether people who were in primary school in Stanhope Street were even in the laundry. In certain cases it was viewed as part of domestic science. One would be taught how to do laundry and that could involve laundry work. That is the kind of area we have to explore. We do not know if everybody who was admitted to an industrial school in High Park worked in the laundry. We know the people the Ombudsman dealt with had worked in the laundry but we do not know what the situation was with all the other women.

Clare Daly (Dublin Fingal, Independent)
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I am almost speechless.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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At the conclusion of this hearing, we will go into private session to determine how the committee will seek to change what we have had to listen to here this morning. We will certainly communicate with the Minister. Perhaps in this situation, because it appears to go beyond the Department of Justice and Equality, we might also communicate with the Taoiseach. It is something we will decide at the end. With the right heart, determining the admissibility of some people could be done expeditiously. It is very annoying and upsetting. How long will it take? It should have been done properly from day one.

Clare Daly (Dublin Fingal, Independent)
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I will chop around on a few of these issues because I am so annoyed I am losing my train of thought. Going back to the Ombudsman's findings on the various issues, Mr. Martin started by talking about the residential institution scheme. Presumably he accepts that Judge Quirke specifically said it did not matter. He accepts the courts have adjudicated it is possible to distinguish between the different types of compensation that people received under that scheme and would be eligible for under this one.

Why, therefore, would the payments received under that fund be basically dealt with as a blanket ban? Mr. Martin might comment in particular on this in light of the evidence the Department produced which showed that a number of people did not avail of that scheme, which is now closed, and, as a result of this interpretation, which was not set out at the start of the scheme but was administratively added later, some women, who have been shamefully treated by the State, could end up with nothing.

Mr. Jimmy Martin:

A person who received an award under the residential institutes redress scheme is not automatically excluded. For example, quite a number of the applicants would have been in an industrial school for a period and would then have moved into a Magdalen institution and would have stayed there until they were 21 years of age. They would get awards under both schemes. There is absolutely no difficulty with that. The awards system under the residential institutions redress scheme is confidential. The Department of Justice and Equality has no access to that, so we do not know who was or was not given an award. We are distinguishing between a Magdalen institution, which was not covered by the Residential Institutions Redress Board and other institutions which were named as being covered by the residential institutions redress scheme.

Clare Daly (Dublin Fingal, Independent)
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Mr. Martin is claiming that just because somebody got an award under that scheme, it did not exclude them automatically from this-----

Mr. Jimmy Martin:

No. The point I am making is that it is not the award, it is the institution that they were in. The residential institutions redress scheme regarded them as separate institutions.

Clare Daly (Dublin Fingal, Independent)
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Is it Mr. Martin's contention that people who were in receipt of an award under the residential institutions statutory fund could avail of this scheme?

Mr. Jimmy Martin:

Yes.

Clare Daly (Dublin Fingal, Independent)
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Right, okay. I want to bring the Ombudsman back in on some issues. I knew there was something else I wanted to return to before Mr. Martin responded.

In terms of the decision to interpret the words "admitted to" and "worked in" in the manner in which the Department did to the exclusion of people who presented themselves to the scheme and given that the Department had an interaction with the Ombudsman's office for almost a year prior to the report and presumably in the course of the year of the report, was there ever any engagement with the Minister or anyone else to point out that they had given the Department a scheme that was way too restrictive, that they were supposed to be compensating these women, yet many of them were now excluded because they inserted the words "admitted to" and "worked in" and that they needed to change that? Was that ever flagged by anybody anywhere?

Mr. Jimmy Martin:

I will address the first part of the Deputy's question and then come to the second part of it. The Government scheme that was approved at the end of 2013 specifically excluded the question of industrial schools on the same site. It was not the words "admitted to" and "worked in" that excluded them. The scheme that was approved by the Government at the time specifically excluded industrial schools and other institutions on the same site. It distinguished between Magdalen institutions and other institutions on the same site.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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You might address the Deputy's second question.

Mr. Jimmy Martin:

I have lost track of it. What was the last question the Deputy asked me?

Clare Daly (Dublin Fingal, Independent)
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I have lost track of it myself because I have been chopping between various bits but I will move on to another question, as I am conscious that other people want to contribute. I will probably think of my earlier question in a minute. We were dealing with the findings and Mr. Martin spoke about the interview process.

Mr. Jimmy Martin:

Yes.

Clare Daly (Dublin Fingal, Independent)
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He said that 73 people were interviewed.

Mr. Jimmy Martin:

Yes.

Clare Daly (Dublin Fingal, Independent)
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I know the Ombudsman made the point that this process was not established until after a year following the first applications to the scheme and that most of the decisions on a majority of cases would have already been made prior to the establishment of that interview process. Could Mr. Martin comment on that? He mentioned that 73 people were interviewed and of those 69 got redress. How many of those people got redress for the time that they claimed to be in a Magdalen laundry? Did they all get the full amount of the time they claimed to be in the laundry, or was it reduced in the context of this dispute over time? How many of the people interviewed and in general got redress for the timeframe they claimed to be in the laundry?

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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Mr. Martin might remember all those questions. I have rolled back the tape in my head and I remember Deputy Daly's earlier question was whether any effort had been made by the Department at any time to raise the issue of those placed in an institution and also working in the laundry and if the Department sought to have that changed.

Mr. Jimmy Martin:

Thank you, Chairman. It was in the context of An Grianán only that this issue arose about our interpretation and the Ombudsman's interpretation. At that stage we had said to the Ombudsman that it would be a matter for Government. We had no objections to raising it with the Government at that stage but he disagreed. He said it was not a question for Government, that it was a question for the civil servants operating the scheme. We considered at that stage going to Government about An Grianán, but the concern was that we were not sure how extensive his final recommendation would be. We knew he was looking at industrial schools and we did not know the scope of his final recommendation. In that context, we said we would wait to see what his final recommendation would be, so he would clarify exactly what the scope was. We did not go to Government at that stage. When his publication was finally reached, we clarified the full scope of that. We sent an information note to the Government but, under Government procedures, we have to work out the implications of implementing that recommendation, and that is what we are doing now.

On Deputy Daly's question regarding the 69 of the 73 people interviewed who got redress, it is not a black and white situation. In some cases we gave more than was sought because when we would have checked the records, we would have found that the period involved was higher than the people recollected. People knew they had been in an institution but they were not very clear about the exact period of time. Regarding the 69 women of the 73 interviewed who got the award, in those cases there was absolutely no written record of any sort beginning, middle or end and, in most cases, the women did not know the exact period. My recollection of the decision is that we gave them what was the average and they had a choice whether to accept that or not, or contest it. I cannot say for every case but where there was no parameter - I believe the average award was for four years in a Magdalen institution - we would have offered four years and it was up to them to accept it or dispute it. I am not aware of any who disputed the period of time.

Clare Daly (Dublin Fingal, Independent)
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If somebody had said eight years they would have been offered four. Is that the case?

Mr. Jimmy Martin:

It would have depended on their testimony. In most cases the difficulty was getting testimony that showed they were in the institution at any period but very few of the women would have given testimony that they knew exactly how long they were in the institution because it was such a long-----

Clare Daly (Dublin Fingal, Independent)
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They might not know to the exact moment but somebody would know the difference between, say, eight years and four years and if documentary evidence was not available in any of these cases, the Department was relying on their word because Mr. Martin said there were no documents.

Mr. Jimmy Martin:

Yes, but when they were interviewed they were asked about their experience, the people who might have been in the institution at the same time, whether they had any photographs or mementos that would indicate whether they were there or not. From some of that material we may have been able to get a time pattern but, generally, there was no indication of a time pattern. On average, therefore, unless there was testimony to the opposite, they would have been offered four years, and most of them were happy with that.

Clare Daly (Dublin Fingal, Independent)
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Nothing in excess of four years came out of those interviews-----

Mr. Jimmy Martin:

No. I cannot say that. I just do not know. I would say the vast majority got four years but I do not have enough information to answer that question.

Clare Daly (Dublin Fingal, Independent)
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With respect to where the Department is at now on this, in terms of what is going on here I just do not get it. Mr. Martin said that the Ombudsman told him that he was interpreting the scheme wrongly. Mr. Martin said he replied that they were not and that this was the criteria and if the Department was to do what he was looking for, it would be a matter for Government and that it would have to change the scheme.

Mr. Martin said that, in order to do what the Ombudsman wanted, it would be a matter for the Government to change the scheme. He disagreed with this but chose not to tell the Government, instead keeping the Minister in the dark while he waited for the next finding. When it came out in November, upholding everything the Ombudsman had said, was a call made immediately to the Minister? Mr Martin had previously said it was a political problem and that the Government had got the scheme wrong.

Mr. Jimmy Martin:

When the Ombudsman published his final report, we gave a detailed account to the Minister who was of the view that we should have an open mind on it. We had to prepare something in order that we could bring it to the Government. That involved working out the implications, the numbers and how it would apply to the relevant people.

Clare Daly (Dublin Fingal, Independent)
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Did the Department do that?

Mr. Jimmy Martin:

We are in the process of doing so.

Clare Daly (Dublin Fingal, Independent)
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The report came out in November.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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Is there a timeframe within which the Department expects to conclude its work?

Mr. Jimmy Martin:

I cannot give one at this stage. We are waiting to hear back from the Department of Education and Skills as it will have the records for the industrial schools. Once we have them, we can get some idea of the numbers involved.

Clare Daly (Dublin Fingal, Independent)
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Like Deputy Lisa Chambers, I was thinking of capacity issues. Using our bad wards of court system which the committee has investigated as an excuse not to implement the recommendation of the Ombudsman is a little poor. There were 40 cases of people with capacity and 17 remain. Are all of them dead?

Mr. Jimmy Martin:

No. Many of them are wards of court.

Clare Daly (Dublin Fingal, Independent)
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I am asking about those other than the 17 cases which remain.

Mr. Jimmy Martin:

A lot of them were wards of court and paid. We are not saying we should not use the wards of court system, but we cautioned against using it in every case. As some women may not want to be made wards of court, we have to be careful. We want to make the payments as quickly as possible.

Clare Daly (Dublin Fingal, Independent)
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Of the 40 cases in which capacity was an issue, 17 remain. How many of the other 23 were wards of court whose cases were settled with payments?

Mr. Jimmy Martin:

The majority would have been wards of court, but some have passed away. I do not have the exact numbers.

Clare Daly (Dublin Fingal, Independent)
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Is it that Mr. Martin does not have them to hand?

Mr. Jimmy Martin:

I do not have them to hand.

Clare Daly (Dublin Fingal, Independent)
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Will Mr. Martin furnish the committee with the numbers? Can he be more specific about payments as a result of the interviews?

Mr. Jimmy Martin:

The Deputy is asking about the 69 interviews held.

Clare Daly (Dublin Fingal, Independent)
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Yes. It would be helpful.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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Can Mr. Martin furnish copies of his replies to requests for additional information through the clerk to the committee?

Mr. Jimmy Martin:

Yes.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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They can then be circulated to every member.

Donnchadh Ó Laoghaire (Cork South Central, Sinn Fein)
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As I have to leave at around 12 20 p.m., I may not get to hear the replies to my questions. If the Ombudsman has comments to make, I will follow them up in the Official Report afterwards.

Is it the Department's intention to write to all of the people who might be able to claim if the Ombudsman issues recommendations that the scheme be changed?

Mr. Jimmy Martin:

Yes, we would have to. Of the 100 people who were refused, some 50 or 60 would fall into this category. We would have to launch a new advertising campaign to explain who was being included. We would also have to name all of the new institutions. We do not have records indicating who was in the institutions. We would have to contact people who would be newly eligible and entitled to apply.

Donnchadh Ó Laoghaire (Cork South Central, Sinn Fein)
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Would they include people whose duration of stay was in dispute?

Mr. Jimmy Martin:

Duration of stay is a different issue. We accept that they were in the institutions. The only issue is for how long they were there. They will be contacted as soon as the system has been set up. They will be told that their cases are being reviewed and that there will be an independent reviewer with whom they will be able to get in touch.

Donnchadh Ó Laoghaire (Cork South Central, Sinn Fein)
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I asked about Ombudsman pension payments. Mr. Justice Quirke said Magdalen laundry survivors should be put in the position they would have occupied had they acquired sufficient stamps to qualify for the contributory State pension. Does Mr. Martin believe it should include a backdating of pension payments to retirement age, rather than simply to the beginning of the administration of the scheme?

Mr. Jimmy Martin:

The Government decided that payments made under the scheme would be dated from 1 August 2013, no matter when a person applied. If it wants to change that provision, it is for it to do so.

Donnchadh Ó Laoghaire (Cork South Central, Sinn Fein)
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That is not what Mr. Justice Quirke recommended.

Mr. Jimmy Martin:

It is not for me to decide but the Government. We are implementing the scheme on which it has decided.

Donnchadh Ó Laoghaire (Cork South Central, Sinn Fein)
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Mr. Martin said his understanding was that there was an acceptance that the State was legally, as well as morally, liable for the wrongs associated with residential institutions. He also said the 2002 Act allowed a person to pursue a claim. Is there an acceptance that the State is liable in the same way for these wrongs?

Mr. Jimmy Martin:

This is an ex gratiapayment scheme.

Donnchadh Ó Laoghaire (Cork South Central, Sinn Fein)
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I am aware of that. I am asking if there is an acceptance that the State is similarly liable.

Mr. Jimmy Martin:

There is no such acceptance because it is an ex gratiapayment scheme, meaning the payments are being made without an acknowledgement of legal entitlement to them.

Donnchadh Ó Laoghaire (Cork South Central, Sinn Fein)
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Therefore, there is no acceptance that the State is legally liable for the Magdalenes.

Mr. Jimmy Martin:

The issue has not been tried in any court. In the case of the residential institutions redress scheme, actions had been taken in courts, both against the people who ran industrial schools and the State. There was an acceptance that the State was liable and the redress scheme was set up to divert cases from the courts. There have not been, to my knowledge, court cases in which either the religious orders or the State have been found liable. The State does not admit liability, but it is not necessarily denying it either as that is a matter for the Attorney General and the Government to decide.

Donnchadh Ó Laoghaire (Cork South Central, Sinn Fein)
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It is my view that the State is morally liable.

Mr. Jimmy Martin:

The Taoiseach made it clear that he accepted full moral responsibility, but there is a difference between it and legal responsibility.

Donnchadh Ó Laoghaire (Cork South Central, Sinn Fein)
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Deputy Clare Daly made a good point about Chinese walls and abstract distinctions. The Department may hide behind the Minister on the basis that the Minister ultimately calls the shots, but my concern is that the Minister will do the same, with less justification or rationale. Mr. Martin said the Department did not have the discretion or authority to include An Grianán and similar institutions in the Magdalen laundry scheme. He said they found themselves alone in a harsh, physically demanding work environment. Is it not fair to say forced labour was a significant part of the Magdalen institutions?

Mr. Jimmy Martin:

First, the McAleese report distinguished clearly between industrial schools on the same sites and the Magdalen institutions. That is stated in the report which regards them as separate institutions. One of the issues mentioned specifically was that of harsh working conditions. It does not just use the phrase "forced labour". In his report Mr. Justice Quirke, when he sets out the payments to be made, distinguishes between what he regards as the labour part and the non-labour part. The focus in the McAleese report is on living conditions and what happened to the women going in and coming out. The labour part was one element but not necessarily the major element in some cases. The majority of the women would have worked in the laundry but some did not.

Donnchadh Ó Laoghaire (Cork South Central, Sinn Fein)
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Clearly, with reference to Cork, there was a labour element considered.

Mr. Jimmy Martin:

There was a portion that was regarded as labour.

Donnchadh Ó Laoghaire (Cork South Central, Sinn Fein)
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In relation to the redress scheme for the industrial schools, was labour a consideration?

Mr. Jimmy Martin:

The answer to that question is I do not know. As I stated, we have not had access to the decisions made under the residential institutions redress scheme because under law they are not accessible to us. The term "abuse" is used. I personally would have thought forced labour would be regarded as an abuse, but I do not know because we do not have the details. I cannot give the Deputy an answer on whether it was considered by the redress board as an issue.

Donnchadh Ó Laoghaire (Cork South Central, Sinn Fein)
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Although I could be mistaken, I am certainly not aware of anything following on from the Ryan commission or the residential institutions redress scheme that made labour, including forced labour, a significant consideration. I suggest, although I may be mistaken, that part of the reason the Ombudsman felt there was no requirement to revisit the Magdalen laundry scheme or anything like it was the fact that many of the complainants had been residents of the industrial schools or residential institutions but had been subject to forced labour in the Magdalen laundries, the component by which they should be able to access the Magdalen laundries redress scheme. Is that a fair appraisal of the case of the Ombudsman?

Mr. Jimmy Martin:

Yes. That is what the Ombudsman is saying.

Donnchadh Ó Laoghaire (Cork South Central, Sinn Fein)
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Mr. Martin has stated the Government's position was that residents of the industrial institutions would not be eligible because they were not residents of the Magdalen institutions. Given that the avenue of their claims was forced labour, on what basis was it discounted?

Mr. Jimmy Martin:

Because the scheme specifically excluded those who had been in industrial schools. One had to have been in a Magdalen institution. The key was not whether one had worked in a laundry. The key was whether one had been admitted to a Magdalen institution. As for the work element, it could have been work in a laundry or something else. If one had been in a different institution and worked in a laundry, under our interpretation of the scheme, that was not covered. The Government's decision was based on a report by the interdepartmental committee which addressed the question of industrial schools on the same site and stated they should not be included in the scheme. That is what the Government approved.

Donnchadh Ó Laoghaire (Cork South Central, Sinn Fein)
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When Mr. Martin states it specifically excluded those who had been in the residential institutions and related specifically to those who had been in Magdalen institutions, what does being in a Magdalen institution specifically require? I want to clarify this aspect. Was it strictly required that they had to have been resident in all circumstances?

Mr. Jimmy Martin:

Yes.

Donnchadh Ó Laoghaire (Cork South Central, Sinn Fein)
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I am not talking about excluding because of being resident in other places.

Mr. Jimmy Martin:

Yes. That was our interpretation of the scheme. They had to have been resident in a Magdalen institution for at least 24 hours to be included in the scheme.

Donnchadh Ó Laoghaire (Cork South Central, Sinn Fein)
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Much of this comes back to what seems to be a discrepancy between the recommendation made in the Quirke report and what the Government accepted in September 2013, the report of the interdepartmental group on the implementation of the Quirke report. Mr. Justice Quirke considered the issue of double recovery and discounted it. According to Mr. Martin's statement, the interdepartmental group specifically excluded institutions such as industrial schools on the basis of avoiding double payments.

Mr. Jimmy Martin:

Let me clarify a technical point. Mr. Justice Quirke was asked a specific question about a specific group of women who would meet the other criteria, that they be in a Magdalen institution but getting money from the Residential Institutions Redress Board, even though they had not been in an industrial school. That is the specific question he was asked and answered. He did not address the broader question of a double payment. Our understanding at the time was that he had not looked at the question of a double payment for those who had been in industrial schools. He only looked at the Magdalen institutions, the ones referred to in the McAleese report, not other institutions.

Donnchadh Ó Laoghaire (Cork South Central, Sinn Fein)
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However, in principle, there was nothing in what Mr. Justice Quirke said that was opposed to the concept.

Mr. Jimmy Martin:

The Deputy is correct that Mr. Justice Quirke did not address it. It does not apply one way or the other.

Donnchadh Ó Laoghaire (Cork South Central, Sinn Fein)
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It still seems that there is a discrepancy; there is a difference between it and what was anticipated. Even if it was not addressed by Mr. Justice Quirke, it was clearly a Government decision and at least was interpreted in that way by the Department. On that basis, this is, according to the Department, a question of interpretation. When the case was taken initially, the Department was central to it and how it came into the public domain. It is related to the complaints made to the Ombudsman. When the case was taken against the Department, did it occur to it that it had a problem in that it had a category of persons who were subject to one of the broad themes that at the very least had been considered by Mr. Justice Quirke in relation to forced labour. They were clearly seen as having been on the same campus as a Magdalen laundry and to a large extent could have been interpreted as having been as part of the same institution, but they would not qualify and were taking a case against the Department. At that stage, did it occur to it that this was a difficulty, that there was a potential discrepancy, that the matter needed to be addressed politically and that the officials needed to go to the Minister who needed to get consent from the Government to revisit the issue? Was that aspect ever considered at that juncture?

Mr. Jimmy Martin:

No. From our perspective, our job was to administer the scheme as decided by the Government. In our view, it had clearly excluded the people in question. That is the situation to which we stuck.

Donnchadh Ó Laoghaire (Cork South Central, Sinn Fein)
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Surely at that stage somebody in the Department would have been responsible for evaluating the case that was to be taken against it and formulating some legal defence. Did it occur to anyone in the Department, whatever about the technical interpretation of the interdepartmental group's report, that morally and in terms of the intent of the Quirke report that it was not in line with what had been intended and that the Department should consider revisiting the issue?

Mr. Jimmy Martin:

We operate under instructions from the Government. It was not our job to interpret what Mr. Justice Quirke had meant. It was the job of the Government to decide what scheme we should implement. That is the basis on which we operate.

Donnchadh Ó Laoghaire (Cork South Central, Sinn Fein)
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I appreciate that. I am not saying it is possible for departmental officials to go off in a particular direction without a direction from the Minister. The point is that a discrepancy would have become apparent to departmental officials that could have been brought to the attention of the Minister. It would have been then have been a matter for the Minister to address it in whatever manner he or she saw fit.

Mr. Jimmy Martin:

As I said, we did not see any discrepancy. The Government had specifically considered this issue and decided not to include the institutions.

We did not see any discrepancy there at all. On reflection, the Deputy is quite correct, maybe we should have gone back to Government and sought clarification on that very issue at that time but the legal advice we got is that our position was perfectly legal and that there was no problem with it. Why we lost in that case is that the procedures we followed were not correct because we did not give enough information to the person who was refused. We accepted that was a mistake and the Ombudsman has drawn attention to that as well. We were remiss there and it is a mistake on our part, but there was no decision by the court that there should be double payment or that the two schemes were different and that redress should be paid. That was not in the judgment.

Donnchadh Ó Laoghaire (Cork South Central, Sinn Fein)
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I do understand that but it is worth taking into account, whatever about the legal arguments, the motivation of the people who took the case and who made the complaints to the Ombudsman was not merely technical, it was on the basis of injustice to them. I think they were correct. I think the interpretation, whether it was the responsibility of civil servants or members of the Government, was wrong and it went against the spirit and very possibly the letter of what was intended by Mr. Justice Quirke. I very much believe that at that stage at the very least if not earlier it should have been revisited. There was a clear cross-over there at the very least between the residents of the residential institution and the Magdalen laundry on the same campus who were in a situation of forced labour together and in that context it should have been revisited. If that is the response of the Minister and if he is the one we should put under pressure, that is fine, but somebody should have recognised that.

Mr. Jimmy Martin:

We did not take the view at the time but in light of the Ombudsman's ruling I said we are open to reviewing it and that is what we are doing now.

Donnchadh Ó Laoghaire (Cork South Central, Sinn Fein)
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I have to leave for another event but I ask that the Ombudsman would address those points and I will read them in the Official Report.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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We will be moving to that decision in a moment. Before we conclude with Mr. Martin, in relation to a question I posed to the Ombudsman earlier on the moneys provided in order to fund the redress scheme, am I correct in understanding that the availability remains and in the event of a favourable decision, which we wish for, a further provision would not be required?

Mr. Jimmy Martin:

No. There is no particular provision for the scheme other than the normal Estimates system. There is a subhead in the Department of Justice and Equality Vote that deals specifically with the scheme. I do not know what the situation is in the other bodies, for example, the Department of Employment Affairs and Social Protection and the HSE. They may fund it from their existing budgets. To clarify, those figures-----

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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The sum of €50 million was mentioned.

Mr. Jimmy Martin:

Yes, but I do not know where that came from. In the case of all schemes, as we are required to do, we did an estimate of how much the scheme would cost. When it went to Government it was estimated that if there were 555 successful applicants the lump sum element would cost €32 million and if there were 1,000 successful applicants the lump sum would cost in the region of €58 million. That was a rough estimate, so it depended on the number of applicants but there was no decision other than that.

On top of that it was reckoned that it would cost an extra €1.7 million in weekly payments, because if one gets more than €100,000, part of that is paid in weekly payments and then there is the medical card element. The Department of Health reckoned it would cost perhaps €3 million a year. The sum of €1.7 million per annum also includes Department of Employment Affairs and Social Protection moneys that are paid out. There is an ongoing cost. There was never a definite cost. The Government was given a range of estimates for the lump sum and then an indication for how much it would cost per annum after that, and that would be an indefinite figure so it was not possible to collect. There is no set figure.

The Department of Justice and Equality does not have any financial interest in restricting the scheme. The money comes from the Department of Public Expenditure and Reform into a special subhead and whoever applies gets whatever they get and that is it. It does not affect the rest of the budget of the Department.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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Clearly not. The likelihood of course is that many of those involved would probably have depended on social protection payments in any event and would thereby qualify for a medical card in the normal course - that these were not necessarily consequential on the fact that they qualified under the terms of the redress scheme.

Mr. Jimmy Martin:

You are right, Chairman. If, for example, there is a significant number of women living in the UK they would get the full weekly costs but the health system is probably better than here so it does not affect them. For a lot of the women in Ireland they are probably already entitled to a non-contributory pension so the only increase for them is to go from that to a contributory pension, but that was presumably built into the costs by the Department of Employment Affairs and Social Protection. I do not have any exact details on how much the scheme costs in social protection terms or in health terms.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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Okay. I thank Mr. Martin and Ms O'Keeffe for attending and for their contribution. It was very informative. It would be remiss of me in concluding if I were not to say to them that we are anxious to be kept informed of progress. We hope the exercise is expedited with all the necessary compassion and understanding. Perhaps it may be open to reconsideration in terms of the brief the witnesses received in the first instance. There are other interpretations that could be put rather than the one the Department has employed. We hope that it would be the case but if it needs ministerial or Government clarity we will pursue it.

I had signalled that we would go into private session. However, will the two colleagues remaining concur with the Chairman that perhaps we should invite Mr. Tyndall back for a very brief interaction?

Clare Daly (Dublin Fingal, Independent)
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Yes, that is guaranteed.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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I do not think it is necessary for us to go into private session. Does Deputy Chambers concur?

Jack Chambers (Dublin West, Fianna Fail)
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Yes.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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If we had to go into private session I would have had to ask all our visitors to leave and that is an unnecessary exercise so I have taken the Chair's prerogative and said we have made this decision. I thank Mr. Martin and Ms O'Keeffe. I invite Mr. Tyndall and his colleagues to join us for a very brief interaction. We are talking about a maximum of 15 minutes. Is that agreed by members? Agreed.

I have welcomed everybody in the Visitors Gallery. It has come to my attention that a woman called Lyndsey is present. On behalf of the committee I extend a very warm welcome to her. We are delighted that she is here with us. People will understand that she has a very personal interest in everything we are addressing. We wish her well. We wish all the women well.

Does Deputy Clare Daly wish to speak?

Clare Daly (Dublin Fingal, Independent)
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I would just like to hear the view of the Ombudsman.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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Yes, Mr. Tyndall will address the committee.

Clare Daly (Dublin Fingal, Independent)
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There was a number of factual points on which I would like to hear him speak.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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Does the Ombudsman wish to comment, having listened to our engagement with the Department officials? It is important that we do not personalise our remarks. The officials are here to represent the Department. We respect them and know that it is not easy to face the difficult questioning that has been put to them. They are not the authors of this situation. Does the Ombudsman want to offer his own evaluation of the responses we have received and the exchange that we have just had? Afterwards Deputies Clare Daly and Jack Chambers can pursue any questions they may have.

Mr. Peter Tyndall:

In 2016, before we commenced the investigation, we wrote to the Department. I can make a copy of the letter available to the committee, if that is helpful. In that letter we set out our view that there was a prima faciecase that there had been maladministration in the way the criteria were interpreted, and we understood that the Department took a different view. We said, in that letter, that should the Department feel that the appropriate way forward was to go to Government to seek revisions to the scheme, whereas we did not believe those to be necessary, we would support them in going forward. The Department, as the committee will understand, did not respond positively to that suggestion and that is why the investigation commenced. That gives some context to some of the areas that members sought to elucidate.

The memorandum to Government, which we have seen, did not specifically include people who were beneficiaries of the residential institutions redress scheme. The scheme was specifically intended to address injury caused by abuse in one of the listed institutions. It was not intended to redress being resident in an institution and working in a Magdalen laundry. Our contention remains that it was entirely possible to interpret the scheme. The committee will have seen from the report that an administrative note was added to exclude people who had access to the residential institutions redress scheme. That was not part of the memorandum to Government.

The Department properly says that it does not have access to information, officially, as to which women benefitted from the scheme but I must tell the committee that the application form for the scheme asks women if they have benefitted from same. While it does not have access to the records of the scheme, it has asked the women. Whereas nothing that was said to the committee is incorrect, it is not the whole picture.

We have heard An Grianán mentioned. An Grianán was not a separate building until 1990. It was separated from the rest of the institution by a stud partition. Essentially, people were in the same building, worked in the same laundry, ate the same foods and saw the same nuns. We simply do not accept that this was a distinct institution. Parts of it may have had a different name but in any other ordinary human understanding of what was happening this was the same place. There is no dispute that these women worked in the laundries that are covered by the scheme. I have to keep coming back to that point. This is not disputed at any stage.

Finally, I want to come to the issue of Ri Villa.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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On Sean McDermott Street in Dublin.

Mr. Peter Tyndall:

Yes. It was identified on page 31 of the report. It is identical in every other respect to An Grianán except that it was left off the list of institutions that were covered by the residential institutions redress scheme. So to say that no industrial schools were covered, and could be included, is a denial of the facts. Essentially, one has a situation where in one part of Dublin one has an institution that fits all of the criteria for the other ones that were excluded, but is included in the scheme.

Fundamentally, our interest in this is to find a resolution for the women who have been excluded, who we believe have been done an injustice and where we have made recommendations. If, in the end, the Department decides that it needs to go back and develop a scheme to make sure that this wrong is righted, we are more than happy to work with the Department to come forward with a set of proposals that will right the wrong. That is what we ordinarily do with other Departments. We are happy to engage, comment on proposals and try and find a way forward. I hope that as a consequence of the report that we will see that engagement going forward and that we can work together to find a solution for these women who continue to be excluded form this scheme.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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I thank Mr. Tyndall. I call Deputy Clare Daly who will be followed by Deputy Jack Chambers.

Clare Daly (Dublin Fingal, Independent)
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What has happened here this morning is quite significant. Even in terms of what normally goes on in this House, it is almost unprecedented to have such a strong report on ways to address the situation from the Office of the Ombudsman following two years of work. Having listened to everything that has been said, I do not feel that lessons have been learned or that points have been taken on board yet. Lip service has been paid to some of the recommendations and without the necessary urgency to implement them that screams from every page. I am glad that the ball is in our court now. I am very glad that these issues have been aired here and we can all clearly see what has happened. Our job, as a committee, is to bring this matter to the Minister's attention and to stop people hiding behind queries about where the responsibility lies. As Mr. Tyndall has said, the people who have been wrongfully excluded must be included as soon as possible. It does not matter it that takes to do so. Their inclusion must take place, as a matter of urgency which definitely was not evident before this morning. I hope that all of our participation this morning will raise the profile of this matter. That is the only thing we can do.

Finally, I pay tribute to the campaigning organisations involved such as the Justice for Magdalenes and pioneering journalists. I am famous for criticising journalists but I want to recognise the exceptional role played by Mr. Conall Ó Fátharta who writes for the Irish Examiner on these issues. Of course, I pay tribute to the women themselves. What we have learned is utterly scandalous and I am sickened by a lot of what I heard here this morning.

Jack Chambers (Dublin West, Fianna Fail)
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Deputy Clare Daly has summed up the situation very well. We, as a committee, have a duty to make the Minister accountable but, as such, we have heard from the Department.

I thank Mr. Tyndall for his response. Obviously there was a difference of opinion between the Department and the Office of the Ombudsman in terms of the prima faciecase that there had been maladministration and a narrow interpretation, as referred to by the Ombudsman. Does he know if the Department referred his letter to the Minister? Did the Department simply respond in its own right?

Mr. Peter Tyndall:

We never got a response to that particular point and that is why we instigated the investigation.

Jack Chambers (Dublin West, Fianna Fail)
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What was the context? Does the Office of the Ombudsman have a copy of the response given by the Department?

Mr. Peter Tyndall:

I am sure that we do. The particular response was on the view that we took, that it was possible to include the women given the current criteria of the scheme. What we did not get was any response to the suggestion that if the Department felt it was necessary to go to the Government that we could assist in that process. At that stage we were doing what we normally do, which was trying to avoid going to a formal investigation.

Jack Chambers (Dublin West, Fianna Fail)
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Yes.

Mr. Peter Tyndall:

We were simply looking for solutions for the women who had been affected. We were not looking for the situation in which we now find ourselves.

Jack Chambers (Dublin West, Fianna Fail)
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I thank the Ombudsman.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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I do not think there are any further questions. In looking back over the different documents and information, I am reminded of a remark made by the former Secretary General of the Department, Mr. Noel Waters, regarding Mr. Tyndall's findings. He stated that the Ombudsman's adverse findings demonstrated "a fundamental misunderstanding of the scheme" on the part of the Ombudsman. I would hope that nobody would have any fundamental misunderstanding of where this committee stands on this issue and how we intend to pursue it.

I thank Mr. Tyndall, Ms McCrum and Mr. Morgan and our earlier presenters from the Department. I thank them all for their patience. Finally, I would once again like to say "Well done" to Lyndsey and wish her good luck for the future. God bless.